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SILVA v. A BEE AN.
0. B., Galle, 3,366.
Crown grant—Nature of the title.
On a purchaser from the Crown a Crown grant confers absolutedominion, superseding all other title existing at the date of the grant,unless such title has been derived from the Crown itself.
V,The remedy for any person claiming to have had at the date of thegrant better title than the Crown is an action for damages against theCrown.,
Tl J&E plaintiff, basipg his title oh a Crown grant dated 16th,May, 1890, in favour of his vendor, alleged possession up toDecember, 1901, apd an ouster in that month by fhe defendant,and prayed for ejectment and declaration of titlg in his favour.The defendant denied the ouster* and claimed titl: by prescriptivepossession of more than thirti'-three years next before December,
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'J'lie pluiutifT raised the issue whether a Crown grant in Ceyloneonlenvcl indefeasible title. At the trial in the Court below, 7thMarch. 11)04. the Commissioner of Requests, Mr. G. A. Baumgart-ner. held that it did; that the plaintiff’s vendor started with a titleunchallengeable by the defendant, who. therefore, could onlysucceed by showing prescriptive possession since the date oftlie Crown grant; that occupation of the laud as shown by theplantations on it had not begun before 1887; and that the evidenceas to who had possession subsequently to the sale by the Crownwas conflicting, bnt preponderated in favour of the plaintiff. He.therefore, gave judgment for the plaintiff.
On the question of the indefeasible nature of the title conferredl> a Crown grant in Ceylon, he referred to the following authori-ties : 4 <’. L. It. It), 4 N. L. Jl. 33, 4 N. L. P>. 343: in which thequestion was referred ,to as an open one, but was not adjudicated on;Ju.»iiuian's Institutes 4, Id, 14: “ but a constitution of Zeno of sacrednieniory has completely protected those who receive anythingfrom the fisc us by sale, gift, or any other title, by providing thatthey themselves are to be at once secure and made certain ofsuccess, whether they sue or are themselves sued in an action.While they who think that they have a ground of action as ownersor mortgagees of the things alienated may bring an action againstthe sacred treasury within four years; ” Sandar’s Translation./>. I Hi: Voi’.l. 49. 14. 2 de Jure Fisci; 18, 4, 8 dr, Haereditate Vendita;14. 4. dr Ecirtionibus; 41. 3, 21 de Usucapionibus; GrcenewegenIn ,1/ir. and Digest.. 49, 14, 5; 2 Thomson's Institutes, 509.
Neostadius (Decisions of the Court of Holland, decision 15) in thecase of Hurweyrr r. Bruijns was also cited as showing that theRoman-Dutch Raw maintained the principle that a Crown grant,">>nocd absolute dominium.
And on the question whether this principle formed part of thelaw in force under the Dutch Government in Ceylon, he referredt<> If. Colombo. 60,604, Grenier. 1873, p. 129: to Creasy's Reports.I-!'. Jti4. 104: to the Legislative Acts of the Dutch Government inIV;. Ion. namely, advertisement*>f 8th April, 1744, and Proclamationof loth November, 17-15. as supporting the conclusion that theprinciple in question did form part of the laws and institutionswhich subsisted under the Dutch Government in Ceylon.
He nest pointed out that the. principle must still*be in force byvirtue of the second paragraph of the Proclamation of 23rdSeptember, 17!)!), as then* lias been no enactment to the contraryby lawful authority, that is, eithtfr *yy the Legislature of Ceylon orby9 tlie* Grown itself; with or without the advice of the Privy1'i'uncil. under ilu- powers always reserved to the Grown by (lie25
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1804. Charter of 18th April, 1801, and subsequent Charters and LettersPatent.
The learned Commissioner then pointed out that Ordinance No. 12of 1840 had for its declared purpose the prevention of encroach-ments by individuals on public property—that is to say, the'protection of the Crown; and must be so construed as to renderits provisions effectual for that. purpose; that, consequently, thedecision of the Government Agent, whether to admit or reject aclaim to land, must, subject to appeal to the Governor, be finaland conclusive, so far as concerns the disposal of the land againstall persons who have been parties to the Government Agent’sinquiry* The Commissioner said:“ I cannot believe that the
legislature intended anything so unbusinesslike as to give anoption’ to a claimant whether to abide by the Government Agent’sdecision or not, and tp leave it open to him to challenge thatdecision after a sale by the Crown. ” If so, the Crown would bein no better position than it was before the enactment of thatOrdinance. Lastly, the Commissioner showed that the law pro-vided a means of redress for those whose land had been wronglysold by the Crown. He referred to .the case of Siman Appu v. TheQueen's Advocate (9 Appeal Cases, 571) as showing that the PrivyCouncil was ready to act on Eoman-Dutch authorities, if forth-coming, giving a right of action for damages against the Crownand quoted the case of Cochrane v. Moore (1890), in which LordEsher held that the Common Law could not be altered by merejudicial decision, but only by Act of Parliament; that the authorityof any judicial decision to the contrary would be over-ruled atany. tame, however remote, by a competent Court; and that no suchAct has been passed by the Legislative Council of Ceylon.
He quoted 2 N. L. B. 361 and 3 N. L. B. 227 as furnishing such .authorities, and added the authority of Perezius, 10, 1, 46. Hementioned the advantages of security in a Crown title and of thediminishing of litigation, and the unfairness of subjecting the.innocent purchaser from the Crown to such litigation. He sum-marized his conclusions as follows: -y
“ I find that the law in Ceylon is that a Crown grant confers theabsolute dominium on the purchaser, superseding all other titleexisting at the date of the grant, unless such .title has been‘derived from the Crown itself, and that the remedy for any personclaiming to have had, at the date of the grant, better title than theCrown, is an actioij for damages' against the Crown, which actionis maintainable, as is demonstrated by. Chief Justice Bonser inSanford v. Waring and by the (Other authorities I have cited. ”
The defendant appealed.
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7th July, 1904. Moncbeiff, A.C.J.—
I affirm the judgment of the Court below, as I see no reasons tothe contrary.
The case came on for argument before Moncreiff, A.C.J., on7th July, 1904.
Van Langenberg, for appellant.
Ramandthan, 8.-0. (with him H. A. Jayawardene), for plain-tiff respondent.
SILVA v. ABERAN